Florida Injury Attorney Blawg
Yesterday’s blog was about the primary legal differences between Florida’s workers’ compensation and personal injury systems with regard to accident-related bodily injuries. Today’s blog will address the differences, which are significant, between Florida’s workers’ compensation system and it’s Wrongful Death Act for the loss of life due to accidents.
For the most part, the laws in Florida regarding compensation for death caused by accidents are prescribed by statute. Workers’ compensation addresses the issue through Florida Statute 440.16, while Florida’s Wrongful Death Act (768.16-768.26), covers it in the context of third-party liability. (CAVEAT: There are exceptions to Florida’s workers’ compensation immunity laws that could make the employer liable for damages under the Wrongful Death Act. A lawyer should always be consulted to consider the issue.) The differences between the two bodies of law are significant.
THE MAIN DIFFERENCES:
- Negligence. As a legal concept, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. It is often difficult to prove negligence. While negligence does not have to be established in a workers’ compensation case, it is a necessary and essential element of every wrongful death case other than those involving strict liability.
- Damages. The monetary compensation for death in workers’ compensation may not exceed $150,000, up from $100,000 from just a couple of years ago. With the exception of death caused by medical malpractice (see this blog), the wrongful death statute does not contain a similar arbitrary cap. The wrongful death statute allows for what is known as non-economic damages (e.g., loss of companionship; mental pain and suffering). Florida’s workers’ compensation system does not. The primary reasoning for the difference has to do with the issue of negligence. The Florida Legislature has decided that not being allowed to recover non-economic damages is a fair price to pay for not having to prove negligence in workers’ compensation cases. In my view, $150,000 hardly makes for a fair trade-off. Workers’ compensation allows for the recovery of $7,500 in funeral expenses.
- Who May Recover Damages. Both bodies of law contain statutory schemes for who may recover damages for death resulting from an accident. Each scheme is convoluted. The monetary benefits through workers’ compensation are paid on a periodic basis, while the compensation under the Wrongful Death Act are paid in a lump sum. I have prepared a flow chart for who may recover under the Wrongful Death Act – follow this link.
- Statute of Limitations. Two (2) years for each. There are exceptions and variations on this black-letter statement, so a knowledgeable lawyer should be consulted before any conclusions are reached.
- Trial by Jury. Not available in workers’ compensation cases. Available upon request in wrongful death cases.
- Attorney Representation. Available in both types of cases.
The issues addressed in this blog are complex and complicated, not nearly as simple as they may appear here. It is for this reason that we encourage and highly recommend that these issues be addressed with a qualified attorney.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
Contact us at 866-785-GALE or by email to learn your legal rights.